Before
the Court in the above entitled matter is Defendants'
Motion for Summary Judgment. (Dkt. 15.)[1] The parties have
filed responsive briefing and the Motion is ripe for the
Court's consideration. Having fully reviewed the record
herein, the Court finds that the facts and legal arguments
are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and
because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
the Motion shall be decided on the record before this Court
without oral argument.

Plaintiff
John Soderberg was a guest at the Shore Lodge hotel in
McCall, Idaho when the incident that led to this suit took
place. (Dkt. 3, 22.) On February 1, 2015, at or around 2:30
a.m., Mr. Soderberg was socializing with friends in his hotel
room when the front desk called and asked him and his guests
to quiet down. Sometime after receiving the phone call, Mr.
Soderberg heard a knock at his hotel room door. (Dkt. 3 at
¶ 5.6.) Mr. Soderberg answered the door, opening it
about a foot. (Dkt. 22-2, Aff. Soderberg at ¶ 9.) When
Mr. Soderberg opened the door he observed two individuals
standing in the dimly lit hotel hallway. (Dkt. 3 at ¶
5.11.) The first individual was standing in the hallway
immediately in front of his door and identified himself as a
Shore Lodge Security Officer. (Dkt. 22-2, Aff. Soderberg at
¶ 8.) Mr. Soderberg observed a second individual
standing, mostly out of view, behind the Shore Lodge Security
Officer who, Mr. Soderberg states, was wearing dark clothing
and did not speak or identify himself. (Dkt. 3 at ¶
5.11.) That second individual was Defendant Dallas Palmer, a
police officer with the McCall City Police Department
(“MPD”), who was wearing his full MPD uniform
with his gun and badge visible.[3] (Dkt. 15-3, Aff. Palmer ¶
14.)

While
Mr. Soderberg was speaking with the Shore Lodge Security
Officer, Officer Palmer came to the forefront and
“began barking commands at Mr. Soderberg.” (Dkt.
22.) Officer Palmer demanded that Mr. Soderberg leave his
room and step into the hallway to speak with him. (Dkt. 3 at
¶ 5.12.) When Mr. Soderberg refused, Officer Palmer told
him that “he smelled marijuana coming from the room and
yelled at him to come out or he was going to be
arrested.” (Dkt. 22.) Again, Mr. Soderberg refused and
when he tried to retreat into his hotel room, Officer Palmer
placed his foot inside of the room and wedged it against the
door preventing Mr. Soderberg from closing it. (Dkt. 3 at
¶ 5.14.) Mr. Soderberg reacted in turn by wedging his
foot against the inside of the door to keep the door from
opening further. (Dkt. 22.) Attempting to force the door
open, Officer Palme r threw his body against the door from
his position in the hallway. (Dkt. 22.) Officer Palmer then
grabbed Mr. Soderberg by the arms and kicked his leg several
times in an attempt to knock Mr. Soderberg's foot away
from the inside of the door. (Dkt. 3 at ¶¶
5.15-5.16.) Mr. Soderberg alleges that Officer Palmer
“physically wrenched” him from “behind the
partially opened door” into the hallway “while
punching and kicking him, and then threw him to the ground on
all-fours.” (Dkt. 22.) Officer Palmer ordered Mr.
Soderberg to get on his stomach and put his hands behind his
back all the while kicking and striking Mr. Soderberg,
including knee strikes to his ribs. (Dkt. 3 at ¶ 5.18.)
The hallway was narrow and Mr. Soderberg states that he could
not stretch out and lie on his stomach from the position he
was in. (Dkt. 22.) Eventually, Mr. Soderberg was handcuffed
and led out to a patrol car. He was arrested for frequenting
a premises where drugs are being used and resisting and
obstructing an officer. (Dkt. 3 at ¶¶ 5.21, 5.27.)
Mr. Soderberg was placed in jail until he could make bail.
Thereafter, Mr. Soderberg's attorney filed a motion to
suppress evidence. The prosecutor ultimately dismissed the
charges against Mr. Soderberg. (Dkt. 3 at ¶ 5.29.)

Mr.
Soderberg contends that as a result of this incident and the
subsequent criminal charges, he has suffered emotional and
mental trauma, damage to his reputation and credibility that
resulted in the loss of his pharmaceutical representative
job, and a lack of steady employment at a comparable
compensation level. (Dkt. 3 at ¶¶ 5.32-5.34.)

On
January 30, 2016, Mr. Soderberg initiated these proceedings
against the City of McCall, Officer Dallas Palmer, McCall
Chief of Police Justin Williams, the Estate of former City
Manager Eugene Drabinski, and former Interim McCall Chief of
Police Larry Stokes. In his Complaint, Mr. Soderberg raises
several § 1983 claims alleging the Defendants violated
his constitutional rights when Officer Palmer conducted an
unlawful search and seizure, invaded his right to privacy,
used excessive force, and falsely arrested and confined him.
(Dkt. 3.) Mr. Soderberg also raises other federal claims
under § 1983 including conspiracy-failure to
investigate; failure to supervise, train, and discipline;
negligence; failure to implement appropriate policies; and
malicious prosecution. (Dkt. 3.) Additionally, Mr. Soderberg
asserts the following state law claims: unlawful search and
seizure; unlawful entry; assault and battery; discrimination;
false imprisonment; trespass and malicious injury to
property; intentional and negligent infliction of emotional
distress; and negligence. (Dkt. 3.)

On
March 16, 2017, Defendants filed this Motion for Summary
Judgment as to all of Mr. Soderberg's claims which the
Court now takes up. (Dkt. 15.)

STANDARD
OF REVIEW

Motions
for summary judgment are governed by Rule 56 of the Federal
Rules of Civil Procedure. Summary judgment is appropriate
where a party can show that, as to any claim or defense,
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a).

Summary
judgment is “not a disfavored procedural shortcut,
” but is instead the “principal tool[] by which
factually insufficient claims or defenses [can] be isolated
and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources.” Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986). “[T]he mere existence of some alleged
factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48 (1986).

Rule 56
mandates summary judgment if the non-moving party fails to
make a showing sufficient to establish the existence of an
element which is essential to the non- moving party's
case and upon which the non-moving party will bear the burden
of proof at trial. See Celotex, 477 U.S. at 322. To
show the material facts are not in dispute, a party may cite
to particular parts of the record, or show that the materials
cited in the record do not establish the presence of a
genuine dispute, or that the adverse party is unable to
produce admissible evidence to support the fact. Fed.R.Civ.P.
56(c)(1)(A), (B); see T.W. Elec. Serv., Inc. v. Pacific
Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987) (citing Celotex, 477 U.S. at 322). The Court
must consider “the cited materials, ” but it may
also consider “other materials in the record.”
Fed.R.Civ.P. 56(c)(3).

The
materials presented by the parties must be “presented
in a form that would be admissible in evidence.”
Fed.R.Civ.P. 56(c)(2). The Court does not make credibility
determinations or weigh the evidence put forth by the
non-moving party and it must view all of the evidence in the
light most favorable to the non-moving party.
Anderson, 477 U.S. at 255; Hughes v. United
States, 953 F.2d 531, 541 (9th Cir. 1992).

DISCUSSION

This is
a civil rights action. Mr. Soderberg's federal claims are
brought under 42 U.S.C. § 1983 alleging violations of
his Fourth, Fifth, and Fourteenth Amendment rights. (Dkt. 3.)
His state law claims allege violations of the Idaho
Constitution and state law.

As a
preliminary matter, Mr. Soderberg concedes that Defendants
should be granted summary judgment on the following federal
claims: (1) right to privacy, as it is subsumed by his search
and seizure claim, and (2) conspiracy-failure to investigate.
(Dkt. 22.) Mr. Soderberg also concedes that Defendants should
be granted summary judgment on the following state law
claims: (1) unlawful search and seizure, (2) unlawful entry,
(3) discrimination, and (4) malicious injury to property.
(Dkt. 22.) As such, this Court grants Defendants' Motion
as to Counts Three, Four, Five, Eight, Eleven, and Fourteen
of the Complaint. (Dkt. 3.) The Court finds as follows on the
remaining claims.

1.
Section 1983 Claims

“Section
1983 provides a cause of action for violations of a
plaintiff's constitutional or other federal rights by
persons acting under color of state law.” Summers
v. City of McCall, 84 F.Supp.3d 1126, 1146 (D. Idaho
2015) (citing Nurre v. Whitehead, 580 F.3d 1087,
1092 (9th Cir. 2009)). “The purpose of § 1983 is
to deter state actors from using the badge of their authority
to deprive individuals of their federally guaranteed
rights.” McDade v. West, 223 F.3d 1135, 1139
(9th Cir. 2000) (citing Wyatt v. Cole, 504 U.S. 158,
161 (1992)). To prevail on a § 1983 claim, the plaintiff
must show that (1) acts by the defendant, (2) under color of
state law, (3) deprived him of federal rights, privileges, or
immunities and (4) caused him damage. See Wyatt, 504
U.S. at 161 (citing Thornton v. City of St. Helens,
425 F.3d 1158, 1163-64 (9th Cir. 2005)).

The
parties do not dispute that Officer Palmer was acting under
the color of state law. The issue before the Court on these
claims is whether Office Palmer's acts deprived Mr.
Soderberg of his federal rights, privileges, or immunities.

A.
Search & Seizure and False Arrest Claims Against
Defendant Palmer

Mr.
Soderberg argues Officer Palmer violated his Fourth Amendment
rights when (1) Officer Palmer searched and seized him
without probable cause and exigent circumstances and (2)
Officer Palmer maliciously and falsely arrested and confined
him without a warrant or probable cause. (Dkt. 3.) Defendants
contend that Officer Palmer's conduct was lawful because
the search and seizure was supported by probable cause and
exigent circumstances and the arrest was supported by
probable cause. (Dkt. 15-1.)

The
Fourth Amendment guarantees individuals the right “to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures” and that no
warrant “shall issue, but upon probable cause,
supported by Oath or affirmation.” U.S. Const. amend.
IV. “The purpose of this amendment is to
‘safeguard the privacy and security of individuals
against arbitrary invasions by government
officials.'” Silva v. City of San Leandro,
744 F.Supp.2d 1036, 1050 (N.D. Cal. 2010) (quoting Camara
v. Municipal Court of the City and Cnty. of San
Francisco, 387 U.S. 523, 528 (1967)). “The text of
the Amendment thus expressly imposes two requirements. First,
all searches and seizures must be reasonable. Second, a
warrant may not be issued unless probable case is properly
established.” Kentucky v. King,563 U.S. 452,
459 (2011) (citation omitted). While “[a] seizure
conducted without a warrant is per se unreasonable under the
Fourth Amendment, ” the presumption of unreasonableness
can be overcome by “specifically established and well
delineated exceptions.” Brewster v. Beck, 859
F.3d 1194, 1196 (9th Cir. 2017) (internal quotations
omitted); see also Hopkins v. Bonvicino, 573 F.3d
752, 763 (9th Cir. 2009); United States v. Hawkins,249 F.3d 867, 872 (9th Cir. 2001).

i.
Search & Seizure Claim

Defendants
argue that Officer Palmer had probable cause to believe Mr.
Soderberg was violating the law when he smelled marijuana
emanating from Mr. Soderberg's hotel room and his concern
that evidence would be imminently destroyed was an exigent
circumstance justifying his entry into the hotel room. (Dkt.
15-1.) Mr. Soderberg contends that Officer Palmer entered his
hotel room and seized him without probable cause and
unsupported by any exigent circumstances. (Dkt. 22.)

One
well-recognized exception to the Fourth Amendment warrant
requirement “applies when ‘the exigencies of the
situation make the needs of law enforcement so compelling
that [a] warrantless search is objectively
reasonable.'” King, 563 U.S. at 459
(quoting Mincey v. Arizona, 437 U.S. 385, 394
(1978)). An officer may lawfully conduct a search and seizure
without a warrant if he has “probable cause to believe
that a crime has been or is being committed” and
exigent circumstances exist. Sandoval v. Las Vegas,756 F.3d 1154, 1161 (9th Cir. 2014); see also
Hopkins, 573 F.3d at 766-67 (The exigent circumstances
exception requires that (1) the officer had probable cause to
search the house and (2) exigent circumstances justified the
warrantless intrusion.). “[T]he exigent circumstances
rule justifies a warrantless search when the conduct of the
police preceding the exigency is reasonable…[and, ]
where…police did not create the exigency by engaging
or threatening to engage in conduct that violates the Fourth
Amendment, warrantless entry to prevent the destruction of
evidence is reasonable and thus allowed.”
King, 563 U.S. at 462.

“Probable
cause exists ‘when the facts and circumstances within
[an officer's] knowledge are sufficient for a reasonably
prudent person to believe that the suspect has committed a
crime.'” Reed v. Lieurance, 863 F.3d 1196,
1204 (9th Cir. 2017) (quoting Rosenbaum v. Washoe
Cnty., 663 F.3d 1071, 1076 (9th Cir. 2011)). “The
analysis involves both facts and laws. The facts are those
that were known to the officer at the time of the arrest. The
law is the criminal statute to which those facts
apply.” Id. “Probable cause…is
not a high bar: It requires only the kind of fair probability
on which reasonable and prudent [people, ] not legal
technicians, act.” Kaley v. United States, 134
S.Ct. 1090, 1103 (2014). The standard is an objective one,
and “[t]he arresting officers' subjective
intention…is immaterial in judging whether their
actions were reasonable for Fourth Amendment purposes.”
Kaley, 134 S.Ct. at 1103. “[T]he question of
whether a reasonable officer could have believed probable
cause existed goes to the jury unless there is only one
conclusion a rational jury could reach.” Act
Up!/Portland v. Bagley, 988 F.2d 868, 872 (9th Cir.
1993).

A
situation is considered exigent when the circumstances
“‘make the needs of law enforcement so compelling
that the warrantless search is objectively reasonable under
the Fourth Amendment.'” United States v.
Struckman, 603 F.3d 731, 743 (9th Cir. 2010) (quoting
Brigham City, Utah v. Stuart, 547 U.S. 398, 403
(2006)). The Ninth Circuit has found, while not an immutable
list, that exigent circumstances include: “‘(1)
the need to prevent physical harm to the officers or other
person, (2) the need to prevent the imminent destruction of
relevant evidence, (3) the hot pursuit of a fleeing suspect,
and (4) the need to prevent the escape of a
suspect.'” Id. (quoting Fisher v. City
of San Jose, 558 F.3d 1069, 1075 (9th Cir. 2009)).

Officer
Palmer's entry into Mr. Soderberg's hotel room in
order to detain him to investigate the smell of marijuana was
supported by probable cause. Under Idaho Code §
37-3732(c), it is “unlawful for any person to possess a
controlled substance” without a valid prescription.
Possession of marijuana, a Schedule I controlled substance,
is a felony in Idaho. See Idaho Code §
37-2705(d)(27) and § 37-3732(c)(1). Further, Idaho Code
§ 37-2732(d) makes it a misdemeanor “for any
person to be present at any place in which he knows illegal
controlled substances are being held for use.” See
State v. Williams, 394 P.3d 99, 109 (Idaho Ct. App.
2016). In his Declaration, Officer Palmer states he has
training and experience in detecting drugs, including
marijuana. (Dkt. 15-3, Dec. Palmer at ¶ 7.) While the
Shore Lodge Security Officer was speaking with Mr. Soderberg
at the door, Officer Palmer detected what he believed to be,
based on his training and experience, the smell of marijuana
coming from Mr. Soderberg's hotel room. (Dkt. 15-3, Dec.
Palmer.)

Mr.
Soderberg does not argue that it was impossible for Officer
Palmer to smell marijuana. Instead he makes two conclusory,
albeit sworn, statements. First, Mr. Soderberg states that he
is a law abiding citizen. (Dkt. 22-2, Aff. Soderberg at
¶ 35.) Second, relying on the Shore Lodge front desk
manager's inspection of Mr. Soderberg's room after he
checked out on February 2, 2014, he maintains that there was
no evidence of smoking or marijuana found in his hotel room.
(Dkt. 22-2, Aff. Soderberg at ¶¶ 33-35) (Dkt. 22-2,
Ex. B.) These statements do not create a genuine issue of
material fact.

Based
on Officer Palmer's training and experience and his
having detected the smell of marijuana emanating from Mr.
Soderberg's hotel room, it was reasonable for Officer
Palmer to believe there was marijuana in the room unlawfully.
See Lingo v. City of Salem, 832 F.3d 953, 961 (9th
Cir. 2016) (citing United States v. Kerr, 876 F.2d
1440, 1445 (9th Cir. 1989 (“[T]he presence of the odor
of contraband may itself be sufficient to establish probable
cause” for issuance of a warrant.); State v.
Derrah, 84 P.3d 1084, 1087 (Or. Ct. App. 2004)
(“The scent of marijuana, emanating from a residence,
without more, is sufficient to support a conclusion that
marijuana will likely be found inside that
residence.”)); see also State v. Cunningham,
No. 41167, 2014 WL 5410648, at *4 (Idaho Ct. App. Oct. 23,
2014) (concluding that the smell of marijuana from a heating
vent outside of a residence was sufficient to support a
reasonable nexus for probable cause to issue a search warrant
for the residence). The Court finds probable cause existed in
this case.

The
Court further finds exigent circumstances were present to
justify Officer Palmer's entry into Mr. Soderberg's
hotel room. Officer Palmer smelled marijuana coming from Mr.
Soderberg's hotel room and Officer Palmer stated he
heard, and Mr. Soderberg admits there were, other individuals
in his room at the time. Based on this information, Officer
Palmer's concern that the evidence would be destroyed or
used before he could obtain a warrant, was objectively
reasonable.

Based
on the foregoing, the Court finds Officer Palmer had probable
cause when he entered Mr. Soderberg's hotel room to
investigate the smell of marijuana where he reasonably
believed, based on the totality of circumstances, that
marijuana was present and would be imminently destroyed.
See United States v. Ojeda,276 F.3d 486, 488 (9th
Cir. 2002).

Because
both probable cause and exigent circumstances were present,
Officer Palmer's entry into the hotel room and the
seizure of Mr. Soderberg did not violate his Fourth Amendment
right. Defendants' are entitled to summary judgment on
the Fourth Amendment claim relating to Officer Palmer's
search and seizure.

ii.
False Arrest and Confinement Claim

Mr.
Soderberg asserts that Officer Palmer violated his Fourth
Amendment rights when he was maliciously and falsely arrested
without a warrant or probable cause and then confined. (Dkt.
3.)

To
prevail on a § 1983 claim for false arrest and
confinement, the plaintiff must demonstrate that there was no
probable cause to arrest. See Norse v. City of Santa
Cruz, 629 F.3d 966, 978 (9th Cir. 2010) (quoting
Cabrera v. City of Huntington Park, 159 F.3d 374,
380 (9th Cir. 1998)). As such, “[t]he absence of
probable cause is a necessary element of [a] § 1983
false arrest…claim.” Yousefian v. City of
Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015). And a
warrantless arrest is constitutional if, “at the moment
the arrest was made, the officer had probable cause to make
it.” Beck v. State of Ohio, 379 U.S. 89, 91
(1964); see also United States v. Lopez, 482 F.3d
1067, 1072 (9th Cir. 2007). “The validity of the arrest
does not depend on whether the suspect actually committed a
crime; the mere fact that the suspect is later acquitted of
the offense for which he is arrested is irrelevant to the
validity of the arrest.” Michigan v.
DeFillippo, 443 U.S. 31, 36 (1979); see alsoBeauregard v. Wingard, 362 F.2d 901, 903 (9th Cir.
1966) (“[W]here probable cause does exist civil rights
are not violated by an arrest even though innocence may
subsequently be established.”)

The
Court finds that Officer Palmer had probable cause to arrest
Mr. Soderberg. In determining whether Officer Palmer had
probable cause at the time of the arrest, the Court considers
“whether at that moment the facts and circumstances
within [the Officer's] knowledge…were sufficient
to warrant a prudent man in believing that the petitioner had
committed or was committing an offense.” Edgerly v.
City and Cnty. of San Francisco, 599 F.3d 946, 954 (9th
Cir. 2010) (quoting Beck, 379 U.S. at 91).
“Although conclusive evidence of guilt is not necessary
to establish probable cause, ‘mere suspicion, common
rumor, or even strong reason to suspect are not
enough.'” Id. (quoting Lopez, 482
F.3d at 1072).

In this
case, Mr. Soderberg alleges facts, which the Court takes as
true for purposes of this Motion, that could have led a
reasonable officer to believe probable cause existed to
arrest Mr. Soderberg for resisting and obstructing an officer
in violation of Idaho Code § 18-705.[4] Resisting and
Obstructing is a misdemeanor offense that requires proof of
three elements: (1) willful resistance, delay, or obstruction
of an officer's duties; (2) the person resisting knew
that the other person was an officer, and (3) the resisting
person also knew at the time of the resistance that the
officer was attempting to perform an official act or duty.
State v. Adams, 67 P.3d 103, 108 (Idaho Ct. App.
2003).

Mr.
Soderberg argues his actions were not in violation of Idaho
Code § 18-705 because he did not know Officer Palmer was
a police officer when he answered his hotel room door as his
view was obstructed by the hotel security guard and the
hallway was dimly lit. (Dkt. 22-2, Aff. Soderberg at ¶
10.) However, the probable cause determination is made based
on the facts and circumstances known by Officer Palmer, not
Mr. Soderberg, and there is no dispute that Officer Palmer
was wearing his official MPD uniform, duty belt, gun, radio,
and badge. (Dkt. 15-3, Aff. Palmer at ¶ 14.) Moreover,
Officer Palmer stepped in front of the hotel security guard
when he told Mr. Soderberg that he smelled marijuana and
ordered Mr. Soderberg to exit his hotel room. (Dkt. 22-2,
Aff. Soderberg at ¶¶ 10-13.) When Mr. Soderberg
refused, Officer Palmer told him that if he did not exit the
room he would be arrested. (Dkt. 22-2, Aff. Soderberg ¶
14.) Officer Palmer then attempted to physically remove Mr.
Soderberg from his room and Mr. Soderberg tried closing the
door on the officer. It was then that Officer Palmer stuck
his foot in the door and attempted to force it open while Mr.
Soderberg continued to resist from the inside by trying to
close the door and refusing to comply with Officer
Palmer's commands. (Dkt. 22-2, Aff. Soderberg
¶¶ 15-21.) Even if Mr. Soderberg did not know
Officer Palmer was a police officer when he initially
answered the door, a reasonable officer in this situation
would have believed that Mr. Soderberg was resisting and
obstructing the officer's ability to discharge his duty
to investigate the smell of marijuana.

Officer
Palmer was in uniform, stated that he smelled marijuana,
ordered Mr. Soderberg to exit the room, and warned Mr.
Soderberg that he would be arrested if he failed to comply.
In response, Mr. Soderberg was noncompliant and resisted
Officer Palmer's attempts to investigate. Based on the
totality of the circumstances, a reasonable officer would
have believed he had probable cause to arrest Mr. Soderberg
for resisting and obstructing in violation of Idaho Code
§ 18-705. See Edgerly, 599 F.3d at 954
(Probable cause must exist under some specific criminal
statute.) Therefore, the arrest did not violate Mr.
Soderberg's constitutional rights and Defendants are
granted summary judgment on the false arrest and confinement
claim.

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